Claimants and respondents in employment tribunal litigation are frequently concerned about details of their cases being public, or worse, being reported by the press. Employment tribunals have a discretionary power to make an order preventing or restricting the public disclosure of any aspect of proceedings (rule 50(1), Employment Tribunal Rules of Procedure 2013). In making an order, the tribunal must give full weight to the Convention right to freedom of expression and the principle of open justice, namely that justice is administered by the courts in public and is therefore open to public scrutiny. Employment tribunals have become increasingly reluctant to order any restriction on the full details of any case being ventilated in public, including more limited measures such as the redaction of names of individuals peripheral or irrelevant to the issues.
In EF v AB [2015] IRLR 619, the EAT overturned the decision of the employment tribunal and granted a permanent restricted reporting order. The claimant had made allegations of sex discrimination and harassment against the CEO (EF), which included salacious allegations against the CEO’s wife (NP). The claimant was unsuccessful in his claims and EF and NP sought an order making permanent a temporary restricted reporting order that had been granted. Mrs Justice Slade concluded that EF and NP were entitled to a high degree of privacy in respect of the allegations about their sexual conduct and that their Article 8 rights (privacy) were therefore engaged. Mrs Justice Slade went on to consider the countervailing Article 10 right (freedom of expression) in respect of both EF and NP. She concluded that, save for the principle of open justice, there was no public interest in revealing the identity of NP and no discernible interest in revealing the identity of EF. Accordingly, NP and EF’s Article 8 rights outweighed the Article 10 right and principle of open justice.
The EAT took a different approach in BBC v Roden [2015] IRLR 627, setting aside an anonymity order that had been granted in favour of the claimant. Mrs Justice Simler concluded that the principle of open justice is of paramount importance. Derogations could only be justified when strictly necessary as measured to secure the proper administration of justice. The different approach in this case can perhaps be explained in part by the fact that the application in BBC v Roden was made by the claimant, who had chosen to engage in litigation in a public forum.
It is clear from BBC v Roden and EF v AB that tribunals considering an application under rule 50 will need to undertake a fact-specific assessment of the public or other interest in full publication and focus on the comparative importance of the specific rights being claimed and the justifications for interfering with or restricting them. There are a number of principles which appear from a review of EF v AB and BBC v Roden:
- The weight afforded to the Article 8 rights of the claimant will be low in circumstances where the claimant has chosen to bring proceedings in a public tribunal.
- Mere publication of embarrassing or damaging material is not a good reason for restricting the reporting of a judgment. Clear and cogent evidence is required to derogate from the public interest in full publication.
- Where a claimant’s motivation in bringing proceedings has been part of a campaign of revenge and blackmail this will be a factor in favour of granting a restriction.
- Where publication impacts the Article 8 rights of children or vulnerable individuals, tribunals will readily grant an anonymity order.
In order to give clients the best chance of success in an application under rule 50:
- Identify any infringement on their rights and produce evidence in support if possible.
- Consider the duration for which any restriction needs to remain, in order to have the desired effect.
- Apply for an order which causes the least possible restriction to full publication (an application to redact certain details will have better prospects than a restricted reporting order).
Finally, some notes of caution. While there is a public interest in settlement of litigation, that does not, in itself, outweigh the fundamental principle of open justice. In Fallows v News Group Newspapers [2016] IRLR 827, the EAT upheld the earlier decision of the employment tribunal to revoke a restricted reporting order in circumstances where the claim had been settled. The EAT also stated that simply because a hearing is held in private (for example a preliminary hearing) does not mean that the principle of open justice does not apply. Any additional privacy restriction will need to be justified.
